People v. Ramirez

• Decision Date: 25 October 2016
• Docket Number: C069700
• Parties: THE PEOPLE, Plaintiff and Respondent, v. RICHARD RAMIREZ, Defendant and Appellant.
• Court: California Court of Appeals

THE PEOPLE, Plaintiff and Respondent, v. RICHARD RAMIREZ, Defendant and Appellant.

C069700

COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Sacramento)

October 25, 2016

NOT TO BE PUBLISHED

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

(Super. Ct. No. 09F04168)

A jury convicted defendant Richard Ramirez of second degree murder and found he personally used a firearm as a previously convicted felon. (Pen. Code, §§ 187, subd. (a), former 12021, subd. (a)(1) (now 29800, Stats. 2010, ch. 711, § 6), and 12022.53, subds. (a), (b), (c), & (d).)¹ On appeal, defendant argues: (1) his second degree murder conviction should be reduced to voluntary manslaughter because theevidence conclusively establishes he killed in heat of passion and in imperfect self-defense, (2) the prosecutor engaged in prejudicial misconduct by misstating the law regarding the order of deliberations for the jury and the definition of voluntary manslaughter, (3) the trial court erred in failing to instruct on defense of others, (4) the cumulative effect of the errors he alleges resulted in an unfair trial, (5) section 12022.53 -- which imposes a 25-year-to-life prison term enhancement for personal use of a firearm in committing murder -- is facially unconstitutional under the Eighth Amendment's prohibition on cruel and unusual punishment, and (6) the abstract of judgment misstates the number of presentence custody credits to which he is entitled. After completion of the original briefing, we granted defendant's request to file a supplemental brief that (7) asserted CALCRIM No. 3472 misled the jury by stating a defendant who provokes a non-deadly fistfight is prevented from claiming self defense, (8) added to his original argument that the prosecutor's closing arguments confused the jury with a distorted definition of voluntary manslaughter, (9) added to his original argument that the trial court erred by refusing to instruct the jury on defense of others, and (10) reiterated the cumulative effect of the errors he alleges undermined his right to a fair trial.

We conclude the evidence did not compel a conviction for voluntary manslaughter based on heat of passion or imperfect self-defense. Any claim of misstatement by the prosecutor regarding the order of deliberations was forfeited for lack of a timely objection, and defendant did not receive ineffective assistance of counsel in this respect. Any misstatement by the People during closing argument regarding the definition of voluntary manslaughter was cured by the jury instructions given by the trial court. We also conclude any error in the trial court's refusal to instruct the jury on defense of others was harmless. We join with other courts in rejecting a challenge to the facial validity of section 12022.53. And we accept defendant's acknowledgment the abstract of judgmenthas been corrected by the trial court. We conclude the jury instructions did not allow the jury to conclude a defendant who provokes a non-deadly fight thereby surrenders any claim of self-defense or imperfect self-defense. Finally, we reject defendant's assertion of cumulative prejudice.

Accordingly, we affirm the judgment.

FACTUAL AND PROCEDURAL HISTORY

Prosecution Evidence

On the afternoon of May 24, 2009, Monica Cassas hosted a birthday party for her nephew Jeremiah Uribe. At least 30 guests -- including defendant -- attended the party at Cassas's house on 18th Avenue in Sacramento. Defendant was known to the group as "Boxer" or "Box."

While the party was going on, Christopher Montejano arrived. Montejano, known as "Criminal," was angry and looking to fight defendant. Montejano called for defendant to come outside, but a few men at the party told Montejano there were children present and it was "not the time or the place" for a fight. Montejano got into a car and left.

Montejano returned and repeated his call for defendant to come outside to fight. Again, some men at the party told Montejano to resolve it at a later time, "old school style" with a fistfight. At some point, in the backyard, Daniel Uribe handed defendant a gun. Montejano left again.

Montejano returned a second time. This time he was wearing a child-size backpack. Montejano appeared to be "really aggravated" and was screaming. One of the party attendees, Marissa Almanza, was outside and observed Montejano pacing back and forth in front of the house, saying, "I will just . . . shoot you bitches and kids. I don't care." Montejano, however, did not display a gun, and eventually Almanza wentinside the house. Defendant came outside and told Montejano, "You want to talk, let's talk."

Defendant and Montejano walked together to a driveway approximately four houses from the birthday party. Several witnesses saw defendant and Montejano argue loudly. Michelle Griffin heard Montejano exclaim, "[G]o ahead shoot me, if you're gonna shoot me, shoot me." The men argued for 10 minutes, during which Montejano began to "try to unzip his backpack." However, he "never got a chance to" do so because defendant pulled a gun out of his pants pocket and shot Montejano. Almanza looked over when she heard shots. She saw Montejano lying on his side in a fetal position, and then heard four more shots.

Defendant took the backpack off of Montejano and ran away. Eddie Sabala was able to see inside the backpack, which was unzipped. Inside, he saw a semi-automatic handgun.

A white Cadillac pulled up in front of where Montejano lay, and its occupants dragged his limp body into the car and drove Montejano to the University of California, Davis Medical Center's emergency room. Montejano received several operations in an attempt to repair the damage caused by six gunshot wounds. Five days after the shooting, Montejano died due to gunshot wounds and the secondary effects of shock and pneumonia.

Three weeks after the shooting, defendant was arrested in Russellville, Arkansas. Arkansas State Police Officer Chris Goodman was on patrol when he observed a black sport-utility vehicle "jerked from the right lane to the left" in a way that "cut off" the car in front of the patrol vehicle. Officer Goodman initiated a traffic stop, looked at the three occupants of the vehicle, and recognized defendant from a photograph in a bulletin issued by the United States Marshall's office. When the officer told defendant he was wantedfor murder, defendant answered that his name was Jose Manuel. After he was handcuffed and placed in Officer Goodman's vehicle, defendant said: "You got me. I'm Richard Ramirez."

Defense Evidence

The defense presented evidence that Angella Sandoval, Montejano's former girlfriend and mother of his child, got into a fight with Monica Cassas about a week before the shooting. The two women ended up hitting and pulling each other's hair. Defendant intervened by pulling Sandoval away by her hair. Sandoval retorted that she was going to tell Montejano about the incident. Defendant responded, "[F]uck you. Get out of my face." Although Sandoval did not inform Montejano, he nonetheless learned about the incident "[b]y word of mouth."

During the party, defendant told Almanza he would later box with Montejano at a park and that would "handle" the situation.

During a June 14, 2011, interview with Detective Derrick Greenwood, Sabala stated Montejano "was trying to, like reach and grab his gun, it was zipped up [inside the backpack], and, um, [defendant] pulled out his gun and shot him." However, Sabala also stated he saw the gun in the backpack only after defendant took it from Montejano as he lay on the ground.

DISCUSSION

ISufficiency of the Evidence for Second Degree Murder

Defendant challenges his conviction for second degree murder on grounds the "evidence presented at trial, at most, showed that Christopher Montejano was killed in the heat of passion or in imperfect self-defense." He argues the insufficiency of theevidence for second degree murder requires his conviction to be reduced to voluntary manslaughter. We are not persuaded.

A.Standard of Review

Ordinarily in reviewing a claim of evidentiary insufficiency, our "task is to review the whole record in the light most favorable to the judgment to determine whether it discloses substantial evidence — that is, evidence that is reasonable, credible, and of solid value — such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. (People v. Johnson (1980) 26 Cal.3d 557, 578.) The federal standard of review is to the same effect: Under principles of federal due process, review for sufficiency of evidence entails not the determination whether the reviewing court itself believes the evidence at trial establishes guilt beyond a reasonable doubt, but, instead, whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. (Jackson v. Virginia (1979) 443 U.S. 307, 317-320, 61 L.Ed.2d 560.) The standard of review is the same in cases in which the prosecution relies mainly on circumstantial evidence. (People v. Stanley (1995) 10 Cal.4th 764, 792.) ' "Although it is the duty of the jury to acquit a defendant if it finds that circumstantial evidence is susceptible of two interpretations, one of which suggests guilt and the other innocence [citations], it is the jury, not the appellate court[,] which must be convinced of the defendant's guilt beyond a reasonable doubt. ' "If the circumstances reasonably justify the trier of fact's findings, the opinion of the reviewing court that the circumstances might also reasonably be reconciled with a contrary finding does not warrant a reversal of the judgment." ' [Citations.]" ' (Id. at pp. 792-793.)"...